Thursday, July 1, 2010

The NLRB's Plan in the Wake of New Process

NLRB The NLRB today announced its plan to handle some of the hundreds of two-member decisions that the Supreme Court recently invalidated in the New Process case.  More precisely, the Board is addressing the cases currently pending in court--not the cases already decided in court, cases in which the losing party complied with the NLRB order, or cases that may be brought to court but haven't yet.  As expected, the Board will rehear these pending cases with a three-member panel that will include Chairwoman Liebman and Member Schaumber, who were on the original two-member panel.  This makes sense, as it means that only one member will have to start from scratch on these cases.  Given that most of the cases are relatively straightforward and that the Board now has three new members to share the workload, I expect most of them to be reissued in a few months.  The relevant portion of the Board's announcement:

In response to numerous inquiries, the National Labor Relations Board today outlined its plans for handling returned cases following the Supreme Court’s recent decision in New Process Steel v. NLRB that the Board was not authorized to decide cases when three of its five seats were vacant. 

During a 27-month period that ended with the recess appointments of two members last March, the Board operated with two members: current Chairman Wilma Liebman and former Chairman and Board Member Peter Schaumber. They decided nearly 600 cases on which they could agree, while those remaining were held for additional Board members.

At the time of the June 17 Supreme Court decision, 96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration.

Each of the remanded cases will be considered by a three-member panel of the Board which will include Chairman Liebman and Board Member Schaumber. Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.

It is unclear at this time how many of the two-member Board rulings not already challenged in the federal appellate courts can or will be contested and how many may now be moot.

Hat Tip:  Dennis Walsh


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Query whether this action is in compliance with New Process Steel? As I understand it, the Board is just going to add a third Member to the existing 2 Member Panel. My problem is that the Board never acted as a quorum of three. Rather they acted as a quorum of two and now will act plus one. Something to think about.
Mitch Rubinstein

Posted by: Mitchell H. Rubinstein | Jul 2, 2010 10:06:51 AM

I think this is a very cagey approach, and one that will be closely scrutinized by at least a few Circuits. Considering that Schaumber's term expires on August 20, this means the Board is going to jam through 70-100 cases in a little less than two months. The Board's two-member decisions were issued without legal authority, not unlike a court deciding a case without jurisdiction over the matter in the first place. For the Board to re-affirm those cases in what will necessarily be a perfunctory manner raises very serious due process concerns. I think the Board is being too clever by half with this approach.

Posted by: Jeff Wilson | Jul 3, 2010 6:03:06 AM

Given the impending expiration of Schaumber's term, I have my doubts about the viability of this approach.

Posted by: James Young | Jul 7, 2010 4:04:23 PM

I am confused. Why is it problematic? Now, each case will get three members to hear it from scratch. Seems like a no-brainer, but then again, I only deal with federal unions.

Posted by: Per Son | Jul 8, 2010 7:02:56 AM

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